ALJDEC decisions subject to certification as final

2022A-00839-CHC-ROC · Registrar of Contractors · 2022-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

JP Advanced Solutions, LLC,

COMPLAINANT

Dwell Custom Cabinetry, LLC

License No. ROC 295290,

RESPONDENT

No. 2022A-00839-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 29, 2022

APPEARANCES: Jonathan Ibsen Esq. represented Complainant JP Advanced Solutions, LLC. Jerzy Poprawa appeared as a witness for Complainant JP Advanced Solutions, LLC. Arizona Registrar of Contractors Investigator Steven Avila appeared as a witness. Respondent Dwell Custom Cabinetry, LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Dwell Custom Cabinetry, LLC (“Respondent”) is the holder of License No. 295290 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about May 12, 2021, JP Advanced Solutions, LLC (“Complainant”) contracted with Respondent for Respondent to perform cabinetry installation in the Wilhoit Residence.

On or about January 31, 2022, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Steven Avila. After a March 16, 2022 Jobsite Inspection, at which both parties were present, Investigator Avila issued a Written Directive to Respondent, dated April 1, 2022, that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify

the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on April 18, 2022.

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Workmanship - After commencing work Luxury and

the homeowner discovered and made Dwell aware of multiple workmanship

issues and gave Dave the opportunity to correct these issues. These workmanship issues included but are not limited to: (i) sloppy finish; (ii) inconsistent/ wrong stain; (iii) missing toe kicks; (iv) missing end panels; (v)

incorrect installation; (vi) missing fillers; (viii) missing doors, drawers and hardware; and (ix) dents and scratches

Investigator’s Observation: At the time of the jobsite inspection the majority of the project was present but not complete. There were items present in regards to the workmanship allegations as such. Appliance fronts missing. Drawer and door fronts missing. Hardware missing. Missing shelves and blemishes. All of these items should have been completed upon the completion of the project as punch list items, however due to the incomplete project status and the termination of the contract these items will not be addressed in the directive.

Also at the time of the inspection, there were various panels with a darker

stained appearance than what is installed in the rest of the project. Stove hood and the left panel on the hanging cabinet appear darker and to have color variations outside of the existing cabinet design. Allegation for inconsistent/wrong stains is verified as these items are installed in a finished manner. Allegation for incorrect installation in regards to the panel underneath the island eating area has been verified in regards to the panel being shorter than needed in continuation of the design throughout the project. Respondent shall correct these items by the appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 2 - Abandonment - Dwell represented that it would start

the project in September. It failed to do so. In fact, Dwell did not start the project until November 18, 2021. The job should have taken approximately one well to complete. Luxury gave Dwell multiple opportunities to correct and complete the above identified workmanship issues and departures from the plan specifications. However, Dwell failed to do so. On January 19, Dwell represented that the job would be completed by January 27, 2022. Despite these promises, the last date Dwell was at the jobsite was January 7, 2022. Dwell has not returned to the jobsite and abandoned the project.

Investigator’s Observation: It was agreed upon by both parties at the time of the inspection that he respondents were onsite and working towards the completion of the project until with the month of the termination of the contract. Due to the continued effort within 90 days prior to termination it is

determined that that the abandonment has not been substantiated. Allegation is not verified.

All errors in original.

Subsequent to the deadline specified in the Written Directive, on May 6, 2022, Investigator Avila contacted Complainant and was informed that Respondent had not performed any work after the issuance of the Written Directive.

Thereafter, Investigator Avila forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The hearing of this matter was scheduled to convene on July 29, 2022, at 1:00 p.m. On the date and at the time set for hearing, Jonathan Ibsen, Esq. represented Complainant. Jerzy Poprawa, Complainant’s President, appeared as a witness. Investigator Avila appeared as a witness. Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Avila testified consistently with his Jobsite Inspection Notes and Written Directive. Investigator Avila testified specifically, that there were improperly cut and missing panels, and the color match of the panels was beyond industry standards. Investigator Avila further testified that he did not conduct a pre-hearing inspection because he had no contact with Respondent since the Jobsite Inspection and no further work was performed by Respondent.

Mr. Poprawa testified that he agreed with all of Investigator Avila’s testimony and his conclusions regarding Respondent’s work on the project. Because Respondent had not made any repairs after the issuance of the Written Directive, Complainant was compelled to hire another contractor to correct and complete the work.

Administrative notice is taken of Respondent’s prior License record on August 2, 2022. Such prior License record reflects that Respondent’s License No. 295290 was first issued on October 27, 2014, and is revoked, effective July 28, 2022. Such prior License record also reflects that there are ten (10) open complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The uncontroverted evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

The uncontroverted evidence established that Respondent did not complete the corrective work following the Written Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 295290 for a period of seven (7) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

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-137160-45720000Done this day, August 3, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary